Dyball v The King

[2025] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dyball v R [2025] NSWCCA 39

Hearing dates:

5 March 2025

Date of orders:

21 March 2025

Decision date:

21 March 2025

Before:

Price AJA at [1]
Dhanji J at [2]
Yehia J at [82]

Decision:

(1)    Grant leave to appeal.

(2)    Allow the appeal.

(3)    Quash the sentences imposed by Payne DCJ on 15 August 2023.

(4)    The applicant is sentenced as follows:

In relation to sequences 1 and 2:

(a) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the applicant is sentenced to an aggregate term of imprisonment of 3 years commencing on 14 August 2023 and expiring on 13 August 2026.

(b) Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Court makes a recognizance release order directing the release of the applicant after he has served 2 years of the sentence (that is, on 13 August 2025) upon the applicant giving surety in the sum of $100 without security, on condition that he be of good behaviour for a period of 1 year until 13 August 2026, and comply with the following further conditions:

(i)    The applicant be subject to the supervision of a probation officer appointed in accordance with the order;

(ii)    The applicant obey all reasonable directions of the probation officer;

(iii)    The applicant not travel interstate or overseas without the written permission of the probation officer;

(iv)    The applicant undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

In relation to sequences 5, 9, 12 and 15

(c) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the applicant is sentenced to a term of imprisonment of 2 years and 3 months commencing on 14 August 2024 comprising of a non-parole period of 1 year and a balance of term of 1 year and 3 months. The non-parole period is to expire on 13 August 2025 and the balance of term is to expire on 13 November 2026. The earliest date on which the applicant will be eligible for parole is 13 August 2025.

Catchwords:

CRIME – appeals – appeal against sentence –appeal out of time – extension granted – significant volume of child abuse material – bestiality material – prohibited firearms – prohibited weapons – State and federal offences – whether error in accumulation of State aggregate sentence on federal aggregate sentence – whether State aggregate sentence manifestly excessive – special circumstances – recognizance release order

SENTENCING – aggregate sentences – State and federal offences – cumulation – complexity – frustration and unnecessary public cost – punishment exacted should reflect what an offender has done – effect of other offences on appropriate penalty

Legislation Cited:

Crimes Act 1900 (NSW), ss 91H, 547E(2)

Crimes Act 1914 (Cth), ss 16A(2), 19AC

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D, 44, 47(2)(b), 53A

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Code Act 1995 (Cth), ss 474.22A(1), 474.22(1)

Criminal Procedure Act 1986 (NSW), s 166

Firearms Act 1996 (NSW), ss 7A(1), 39(1)(a)

Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:

Beck v R [2024] NSWCCA 201

Director of Public Prosecutions (Vic) and Another v Swingler [2017] VSCA 305; (2017) 269 A Crim R 526

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

McGregor v R [2024] NSWCCA 200

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Mulato v R [2006] NSWCCA 282

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Carroll [1991] 2 VR 509

R v Hutchinson [2018] NSWCCA 152

R v Paull (1990) 20 NSWLR 427

R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Category:

Principal judgment

Parties:

Brian Dyball (Applicant)
Rex (Respondent)

Representation:

Counsel:
C O’Neill with C Akthar (Applicant)
A Chhabra with J Moore (Respondent)

Solicitors:
Tony Cox Lawyers and Conveyances (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/00166687

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 August 2023

Before:

Payne DCJ

File Number(s):

2022/00166687

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Brian Dyball, pleaded guilty to two federal and four State offences related to him accessing and possessing child abuse material, possessing bestiality material and possessing unauthorised firearms and prohibited weapons. On 15 August 2023, Payne DCJ sentenced the applicant to two aggregate terms of imprisonment, the first for the federal offences and the second for the State offences. The aggregate terms were, respectively, 3 years, and 2 years and 9 months with a non-parole period of 1 year. The indicative sentences for the offences making up each aggregate sentence were each arrived at after the application of a 25 percent discount for the applicant’s early plea of guilty. Pursuant to s 19AC(4)(b) of the Crimes Act 1914 (Cth), Payne DCJ declined to make a recognizance release order for the federal offences. The State aggregate sentence was ordered to commence 2 years into the federal aggregate sentence. The total effective sentence was 4 years and 9 months imprisonment commencing on 14 August 2023 and expiring on 13 May 2028, with a non-parole period of 3 years ending on 13 August 2026.

The applicant sought leave to appeal against his sentence, out of time, on two grounds. By ground 1, the applicant contended that the sentencing judge erred in her approach to the accumulation of the State aggregate sentence on the federal aggregate sentence. By ground 2, the applicant contended that the aggregate sentence for the State offences was manifestly excessive.

The Court held (per Dhanji J, Price AJA and Yehia J agreeing), granting leave to appeal, allowing the appeal and resentencing the applicant:

As to the extension of time:

1. The application to appeal was delayed pending this Court’s decision in McGregor v R [2024] NSWCCA 200, which was handed down on 1 November 2024. It was reasonable for the applicant to delay his application given the result in that case was determinative of the validity of the aggregate federal sentence imposed on the applicant. Leave to appeal out of time was granted (at [12]).

As to Ground 1:

2. A ground of appeal that the sentencing judge "erred in her approach to the accumulation of the State aggregate sentence on the federal aggregate sentence" was difficult to sustain in circumstances where the course taken by her Honour was available to her (at [41]).

3. The complaint as to her Honour's approach was one with respect to the commencement date of the State sentence. The question of whether there was error in her Honour's approach to accumulation could only be answered by reference to the total sentence. Error in that regard was the subject of ground 2. Ground 1 was not upheld (at [42]-[43]).

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38, Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 cited.

As to Ground 2:

4. The indicative sentence for the offence relating to the possession of child abuse material was 2 years and 3 months, which was within the available range, particularly having regard to the volume of material in the applicant's possession (at [65]).

5. The additional six months in the State aggregate sentence resulted from the offences relating to the possession of bestiality material, unauthorised firearms and prohibited weapons. This was difficult to justify and significantly added to the severity of the overall sentence (at [63]-[64]).

6. When regard was had to the additional six months and the commencement date of the State offences 2 years into the 3 year federal aggregate sentence, the result was simply too long. The aggregate sentence imposed for the State offences was manifestly excessive. Ground 2 was upheld (at [65]-[67]).

As to resentencing:

7. The State sentence was commenced so as to allow for a greater degree of concurrency with the federal sentence. Special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were made out. It was necessary to make a recognizance release order pursuant to s 19AC(1) of the Crimes Act 1914 (Cth) for the release of the applicant after serving two years of the federal sentence (at [80]).

JUDGMENT

1. PRICE AJA: I agree with Dhanji J.

2. DHANJI J:   In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan JJ said (at [40]), that, when sentencing for multiple offences, while it is necessary to determine an appropriate sentence for each offence, subject to any contrary legislative intention, “the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn”. This seemingly simple instruction is often made more difficult by the complexities of multiple charges involving ever more specific offence provisions, and mixtures of federal and State offences with their own sentencing provisions. That was the case here.

3. The applicant, Brian Dyball, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), out of time, against the sentence imposed upon him in the District Court of New South Wales at Port Macquarie on 15 August 2023 by her Honour Judge Payne.

4. The applicant was sentenced with respect to two federal and four State offences related to him accessing and possessing child abuse material, possessing bestiality material and possessing unauthorised firearms and prohibited weapons.

5. The following table outlines the offences for which the applicant was sentenced, their maximum penalties, their applicable standard non-parole periods (“SNPP”), and the objective seriousness and indicative and aggregate sentences as determined by the sentencing judge:

Seq	Offence	Maximum Penalty / SNPP	Objective seriousness	Indicative Sentence	Aggregate Term
1	Use carriage service to access child abuse material: s 474.22(1) of the Criminal Code Act 1995 (Cth) (“Criminal Code”).	Max Penalty - 15 years	Mid-range	2 years and 3 months	3 years tdf 14 August 2023
2	Possess child abuse material accessed via a carriage service: s 474.22A(1) of the Criminal Code.	Max Penalty –15 years	Mid-range	1 year and 6 months
5	Possess child abuse material: s 91H(2) of the Crimes Act 1900 (NSW);	Max Penalty – 10 years	Mid to high range	2 years and 3 months	2 years, 9 months NPP 1 year tdf 14 August 2025
15	Possess bestiality material: s 547E(2) of the Crimes Act. 1900	Max penalty – 3 years	Low range	9 months
9	Possess unauthorized firearm: s 7A(1) of the Firearms Act 1996 (NSW), taking into account Not keep firearms safely: s 39(1)(a) Firearms Act.	Max penalty – 5 years SNPP – Max penalty – 12 months and/or 20 penalty units	Not objectively serious	3 months
12	Possess prohibited weapon: s 7(1) of the Weapons Prohibition Act 1998 (NSW)	Max penalty – 14 years SNPP – 5 years	Not objectively serious	3 months

6. Sequence 9 and sequence 12 were before the court by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

7. The indicative sentences for the offences making up each aggregate sentence were each arrived at after the application of a 25 percent discount for the applicant’s early plea of guilty pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) and s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW).

8. As can be seen from the table, her Honour imposed two aggregate terms of imprisonment, the first for the federal offences and the second for the State offences. The two aggregate terms were 3 years, and 2 years and 9 months with a non-parole period of 1 year. The State aggregate sentence was ordered to commence 2 years into the federal aggregate sentence.

9. The total effective sentence resulting from the above sentences was a head sentence of 4 years and 9 months imprisonment with a mandatory custodial component of 3 years, commencing on 14 August 2023. The non-parole period will end on 13 August 2026 and the full-term will expire on 13 May 2028.

10. Pursuant to s 19AC(4)(b) of the Crimes Act 1914, the sentencing judge declined to make a recognizance release order for the federal offences.

11. The grounds of appeal on which the applicant seeks to rely are as follows:

Ground 1: Her Honour erred in her approach to the accumulation of the State aggregate sentence on the federal aggregate sentence.

Ground 2: The aggregate sentence imposed in relation to the four State offences is manifestly excessive.

12. Given the appeal was filed out of time, the applicant also requires an extension of time to bring this appeal. The applicant submits that the application to appeal was delayed pending this Court’s decision in McGregor v R [2024] NSWCCA 200, which was handed down on 1 November 2024. The respondent, appropriately in my view, accepts that it was reasonable for the applicant to delay his application pending resolution of the issue decided by McGregor, given the result in that case was determinative of the validity of the aggregate federal sentence imposed on the applicant. The respondent also accepts that, subsequent to that decision being delivered, the applicant has acted promptly in bringing this application. I would grant leave to appeal out of time.

13. For the reasons set out below, I would grant leave to appeal and allow the appeal.

Agreed Facts

14. A statement of agreed facts dated 14 July 2023 was tendered during the sentencing proceedings. The following is taken from those facts.

15. On 8 June 2022, members of the Australian Federal Police (AFP) executed a search warrant at the applicant’s residence. They seized a number of devices belonging to the applicant and located material and items that gave rise to the offences for which the applicant has been sentenced.

Sequence 1

16. Sequence 1 relates to the applicant accessing child abuse material using a carriage service contrary to s 474.22(1) of the Criminal Code. On one of the applicant’s two mobile phones, the AFP located two conversations over the applications Telegram and Wickr. In one conversation, the applicant was sent one 30-second video of a child in a sexualised context. In another conversation, the applicant talked to a 16-year-old child about creating naked photos of herself for money. The child sent one naked image of herself to the applicant. A further 29 child abuse files were located across the applicant’s two mobile telephones with metadata indicating access by use of a carriage service on dates between March and June 2022. The child abuse material depicted pre-pubescent and pubescent children posing and engaging in penetrative sexual activity.

Sequence 2

17. Sequence 2 relates to the applicant’s possession of 36 files of child abuse material in the form of data held in a computer or contained in a data storage device, and his use of a carriage service to obtain or access the material, contrary to s 474.22A(1) of the Criminal Code. The child abuse material depicted real and animated pre-pubescent and pubescent children posing and engaging in sexual activity with adult males. The material was contained on the two mobile telephones and in folders on a hard drive connected to a computer.

Sequence 5

18. Sequence 5 relates to the applicant’s possession of 1,320 files of child abuse material in hard copy and on DVD, contrary to s 91H(2) of the Crimes Act 1900. The hard copy material was stored underneath the applicant’s mattress and depicted pre-pubescent children between three and ten years of age in sexualised poses. The DVDs contained videos of pre-pubescent and pubescent children between six and eight years of age posing and exposing their genitals.

Sequence 15

19. Sequence 15 relates to the applicant’s possession of bestiality material contrary to s 547E(2) of the Crimes Act 1900. The applicant had two images on his computer which depicted bestiality, with each image depicting an animal engaged in penetrative sex with a female.

Sequence 9

20. Sequence 9 relates to the applicant’s possession of two prohibited firearms, namely a Winchester lever action shotgun with the barrel missing and a .22 calibre bolt action rifle with the bolt missing. The applicant was not authorised to do so by a licence or permit, contrary to s 7A(1) of the Firearms Act.

21. In sentencing for sequence 9, the sentencing judge took into account a further offence on a form in accordance with Division 3, Part 3 of the Crimes (Sentencing Procedure) Act, being sequence 11. Sequence 11 relates to the applicant failing to take all reasonable precautions to ensure the safekeeping of the above firearms, contrary to s 39(1)(a) of the Firearms Act.

Sequence 12

22. Sequence 12 relates to the applicant’s possession of prohibited weapons, namely a knuckleduster and a firearm silencer, without being authorised to do so by permit, contrary to s 7(1) of the Weapons Prohibition Act.

Proceedings on Sentence

23. The proceedings on sentence took place on 10, 11 and 15 August 2023. Both parties provided written submissions and made oral submissions to the Court.

24. The Crown provided a Crown schedule summarising its submission as to the objective seriousness of each offence together with a table containing a summary of sentencing outcomes in other cases for comparative purposes.

25. Tendered on behalf of the applicant was a report of Mr Lee Knight (clinical nurse consultant) dated 19 July 2023, supplementary correspondence from Mr Knight, personal references from Kirsty Keough, Justin Levido and John Slaven, an affidavit of the applicant’s mother, a letter from Dr Elizabeth Ryrie dated 17 July 2023 outlining the applicant’s mother’s medical conditions, a letter from Dr Shona Lewis dated 2 August 2023, confirming the applicant’s prescription for an anti-depressant and annexing a letter written by the applicant. The applicant also provided summaries of sentencing outcomes in a number of other cases.

26. In addition to submissions directed to the sentencing outcomes, the structure of the sentence was the subject of some discussion between her Honour and the parties. Her Honour indicated her intention to impose an aggregate sentence for the federal offences and then partially cumulate an aggregate sentence for the State offences, with the result that it would not be appropriate to make a recognizance release order with respect to the federal sentence. The parties accepted that her Honour’s proposed structure was open to her and that, given her Honour’s proposed structure, s 19AC(4)(b) applied such that it was not necessary to set a recognizance release order with respect to the federal aggregate sentence. I will return to s 19AC in the context of ground 1.

Sentencing

27. The applicant was sentenced on the facts extracted above.

28. Her Honour made the following findings as to the applicant’s subjective circumstances and the relationship between the offences (at pp 8-9):

“Specific deterrence is, in my view, a relevant consideration in this case. I accept that he is remorseful, he wrote a letter to the court and I am not sure that was on the list, but that was added later… So I accept he is remorseful and I have already referred to the guilty plea.

As to his record, as much as it is, I put to on one side completely, the Children’s Court matter, then there is a matter, a PCA 0.06 in 1983, a long time ago, then driving offences in 1991. In my view, he can be said to be a person of prior good character. He was aged 56 at the time of the offences and he is now 58.

I accept this will be, his going into custody, will be a matter that will considerably [a]ffect his mother and I have taken in to account the content of the reference and also her medical conditions.

I have taken in to account the likelihood of offending put forward in the report of [Mr] Lee Knight. And he has been having treatment for about 12 months, because of course, this has been with him since June last year and now we are up to August 2023.

Mr Knight is a clinical nurse consultant and his general practitioner appears to have prescribed sertraline for the [applicant] when requested to do so by the [applicant], apparently on the advice of Mr Knight.

I accept the Crown’s submissions that his prospects for rehabilitation are positive but guarded. Totality is a significant aspect of this sentencing exercise. I accept the submission that there should be some accumulation between the Commonwealth offences and the State offences.

Indeed, each of the four offences, two Commonwealth and two State, they all reflect individual criminal behaviours. But as Mr Crown said, the objective of rehabilitation does not displace the requirement the sentence must be of a severity appropriate in all the circumstances of the offence.”

29. And further (at pp10-12):

“[the applicant’s] background is gone into in detail in the psychological report. His date of birth is 13 October 1964. He actually said that he preferred younger aged children.

…

The Crown said that there was some limitation on him bringing forward, or confessing, or being forthright in relation to prior behaviour. But in my view, he should receive credit for being honest, indeed honest, against his own interests in his discussions with the author of the report.

…

… he said that he has been viewing child sexual abuse material for in the order of ten years.

He has been helping his mother considerably on the farm. He has continued support from his family who have attended the whole sentence proceedings. His mother is in her 85th year.

He said in his letter I am prepared to face the consequences I deserve, but I want to apologise to the Court for the time taken to deal with my charges, to my mother for the pain I have caused her, to the victims of child abuse and the part I played in it, and to my family and friends who have supported me, I do not deserve their love and support, but I am very grateful for it

…

I have found special circumstances in relation to the State offences. He will need time to reintegrate in to the community and also to continue treatment in the community and unfortunately, treatment in the community is more effective, in my view, than in custody.”

30. As to her Honour’s treatment of sequences 15, 9 and 12, relevant to the applicant’s manifest excess ground, her Honour found that (at p3, p11):

“The firearms were not in working order and there is no evidence that the ammunition could have been utilised with the two firearms. And in any event, they were not in working order.

…

Sequence 9 and 12 not so, but the other four offences are objectively serious and the subjective material and his prior good character cannot outweigh, as the Crown said, the objective seriousness of the offending.

Both sides, defence and Crown, have brought forward certain comparative cases.

I have not addressed it, but in relation to the possess bestiality material, the Crown said the offences are at the low range of objective seriousness for offences of this type and I accept that submission.”

31. Her Honour set out the sentences referred to above. Upon doing so the following exchange occurred (at pp13-14):

“So, before I finalise the order, is there any slips in that, or to the approach, but just to tell you, before formally making the order, the effective sentence is four years and nine months and the effective non-parole period is three years.

Can I just say, I did think about this, but the terms did work out, in any event. But, it meant that the Commonwealth offences, which did not have any minimum aspect, Recognizance Release Order, or otherwise. Those Commonwealth offences finish at the same time as the non-parole period on the State ones, so that means he will not be kept in any longer on the Commonwealth ones, they will have finished.

JORDAN: Yes, I can see that, thank you your Honour. In terms of the arithmetic, it seems right to me, your Honour.

…

HUNTER: The approach appears correct in terms of dates and I can't detect any slips or errors of that nature, your Honour.”

Ground 1 – her Honour erred in her approach to accumulation of the State aggregate sentence on the federal aggregate sentence

The issue

32. By this ground, the applicant complains that the sentencing judge erred in her approach to accumulation. Essentially, it is contended that her Honour erred by partially cumulating the sentence for the State offences on the sentence for the federal offences without taking into account an appropriate notional minimum pre-release period in relation to the aggregate sentence for the federal offences.

33. The ground raises for consideration the intricacies of sentencing for federal and State offences. Sentencing for federal offences is complicated enough. When that difficulty is combined with sentencing for State offences at the same time, the courts may be running out of suitable metaphors by which to express the frustration, including as to the unnecessary public cost, that results from that complexity: see for example R v Carroll [1991] 2 VR 509 at 514, referred to in Director of Public Prosecutions (Vic) and Another v Swingler [2017] VSCA 305; (2017) 269 A Crim R 526 at [75]. It seems almost quaint to be referring to statements such as this, and those of Hunt J in R v Paull (1990) 20 NSWLR 427 at 437 when regard is had to how much worse the situation has become in the years that have passed since those statements were made.

34. In Swingler, the Court set out three generally available approaches when sentencing for a combination of federal and State offences (at [78]):

“How then should a judge, faced with a joint Commonwealth-State indictment of the kind filed in this case, go about sentencing an offender such as the respondent? Logically, there seem to be three possibilities, as follows:

1.   The judge can simply sentence for each offence on the indictment, in the order in which each offence is listed. He or she can then differentiate between them by making orders as to cumulation or concurrency with regard to the State offences and orders as to commencement with regard to the Commonwealth offences. The sentencing judge adopted that approach in the present case but, as can be seen, it was not an unqualified success.

2.   The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.

3.   The judge can group all the Commonwealth offences together, and deal with them first. This potentially gives rise to the difficulty that State offences ordinarily operate from the date of sentence, as per s 17(1) of the Sentencing Act. They cannot, as a general proposition, be made to commence at the expiration of a Commonwealth sentence, subject only to s 16(4). …” (citations omitted)

35. The Court referred to the second of the above alternatives as “the simplest approach in a case such as this”. That of course does not mean that adopting another approach, as occurred here, is necessarily in error. Further, the circumstances peculiar to Victoria in (3) above do not apply here. It was not suggested that the limitations in s 47(2)(b) of the Crimes (Sentencing Procedure) Act prevented her Honour from commencing the State sentence on a future date during the period the applicant would be serving (or the day after the expiry of) the custodial component of the federal sentence. Nonetheless, the adoption of the third of the three alternatives postulated in Swingler is one which, on the applicant’s submission, has led to error.

36. Having determined an aggregate sentence for the federal offences which was not more than 3 years (and was more than 6 months) the court was required to fix a recognizance release order pursuant to s 19AC(1) of the Crimes Act 1914, subject to application of the exception in s 19AC(4). Those provisions are extracted below:

19AC   When court must fix a recognizance release order

(1)    Subject to subsections (3) and (4), where: (a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and (b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and (c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence; the court must make a single recognizance release order in respect of that sentence or those sentences and must not fix a non-parole period

…

(4)    A court may decline to make a recognizance release order in respect of a person if:

(a)    the court is satisfied that such an order is not appropriate, having regard to:

(i)    the nature and circumstances of the offence or offences concerned; and

(ii)    the antecedents of the person; or

(b)    the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences.

37. Her Honour declined to set a recognizance release order on the basis that s 19AC(4)(b) applied. That is, on the day after the end of the federal sentence, as a result of the structure her Honour proposed, the applicant would be subject to the sentence for the State offences. (He would be one year into that sentence.) Given this, it would have been in error for her Honour to set a recognizance release order as the order for the applicant’s release would be inconsistent with the order mandating his detention with respect to the State sentence: Beck v R [2024] NSWCCA 201 at [17]-[18].

38. The point made by the applicant is that he is not a person to whom it was suggested s 19AC(4)(a) applied. Thus, absent the decision to commence the federal sentence first, the making of a recognizance release order was mandatory pursuant to s 19AC(1). Had this occurred, the point at which the recognizance release order would have taken effect is not ascertainable. There is no norm in this regard: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [44]. That said, when regard is had to the purposes of punishment and the weight which they are given in setting both the total term and any pre-release period, common experience is that the pre-release period is generally in the order of 60 to 66 percent of the total sentence. That had been expressed to be the ordinary range in federal matters prior to Hili v The Queen: see Paull at 435.

39. The point made by the applicant is that, if the above logic is accepted, had the federal sentence stood alone, he would have expected to serve as the mandatory custodial component something in the order of two years. Further, had a recognizance release order been set, the further sentence for the State offences could not have started any later than the day after the end of the mandatory period of custody. Yet, as the applicant’s argument proceeds, the State sentence was ordered to commence two years after the commencement of the federal sentence. In other words, there was in effect “full cumulation” on the (putative) mandatory custodial component of the federal sentence.

40. In the applicant’s submission, the commencement date was, as a result, inconsistent with the need for a substantial measure of concurrency having regard to the relationship between the various offences. That is, because by far the most serious offending was covered by the three charges related to child abuse material.

41. While the logic of the applicant’s argument may be acknowledged, a ground of appeal that the sentencing judge “erred in her approach to the accumulation of the State aggregate sentence on the federal aggregate sentence” is difficult to sustain in circumstances where the course taken by her Honour was available to her.

42. Ultimately the complaint as to her Honour’s “approach to the accumulation of the State aggregate sentence” is one with respect to the commencement date of the State sentence. This is a complaint with respect to totality. A sentencing judge is allowed flexibility in determining the structure of a sentence so as to achieve an “overall sentence [that is] just and appropriate to the totality of [an offender’s] offending behaviour”: Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37]. An error with respect to totality is, therefore, ordinarily resolved by considering the total effective term of imprisonment and its capacity to comprehend the entirety of the criminality involved: R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52]. Given this, a commencement date reflecting a high degree of cumulation may be entirely appropriate if the sentence being accumulated is at the lower end of the available range for the offending to which it relates, or indeed has been reduced for the purposes of totality: see Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at 63. Conversely, a sentence reflecting little or no concurrency, which is itself at the higher end of the range, is more likely to result in a sentence that is manifestly excessive. The question of whether there was error in her Honour’s approach to accumulation can only be answered by reference to the total sentence. Error in that regard is the subject of ground 2.

43. It follows from the above that I would reject ground 1.

Ground 2 – manifest excess

The issue

44. By ground 2, the applicant complains that the overall sentence imposed upon him was manifestly excessive. The primary basis for this contention is the extent of the cumulation (on the same basis as argued in ground 1) and the impact of sequences 15, 9 and 12 in extending the aggregate sentence where those offences, had they been dealt with on their own, would not warrant sentences of full-time imprisonment.

45. The principles to be applied with respect to a complaint of manifest excess are well settled. In short, the applicant contends that, while it may not be possible to identify an error, the length of the sentence is such that the misapplication of principle can be inferred. This is sometimes described as “latent” error. A helpful and succinct summary of the principles to be applied in a complaint of manifest excess was set out by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

46. More recently, in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42], Bell P (Gleeson and McCallum JJA agreeing) referred to the above summary and added:

“To this oft-cited summary of principles, may be added the following:

(1)   Sentencing is an “exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” — Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].

(2)   Each case has to be considered on its own merits, and no case is entirely similar to any other — Windle at [61].

(3)   There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate — Windle at [61].

(4)   An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” — R v Elemes [2000] NSWCCA 235 at [22]–[23].

(5)   The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 — Matthews v Australian Securities and Investments Commission [2009] NSWCA 155 at [181]; Dowling at [59].

(6)   The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) — Turner at [68].

(7)   Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process — Dinsdale at [6]; Simmons at [30].

(8)   Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range — Martinez v R [2020] NSWCCA 250 at [39].

(9)   Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight — Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]–[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].

(10)   Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender — Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

47. The effect of a sentence is dictated by at least two, and often three different components: the commencement date, the total length of the sentence, and (where set) the length of any mandatory pre-release period. When sentencing an offender for a single offence where the offender is not subject to any other sentence, the sentence must commence no later than the date on which it is imposed: s 47(2)(b) Crimes (Sentencing Procedure) Act. In the present case, having set the federal sentence, her Honour’s discretion as to the date on which the State sentence should commence was (subject to the result falling within the available range) a choice between the date of sentence (there being no suggestion any backdating was appropriate) and the day after the federal sentence was due to expire: s 47(4) Crimes (Sentencing Procedure) Act.

48. The applicant contends that the commencement point, two years into the total, together with the length of the sentence, has produced a result that is manifestly excessive.

The charges relating to child abuse material

49. The concern as to the commencement date and the length of the State sentence is to be seen in the context of the relationship between the various offences which contributed to the two aggregate sentences. As noted above, the primary offending was that which related to the child abuse material. Each of those three charges can be described as “rolled up” charges in that each dealt with multiple images, each of which was capable of founding an offence. This was a practical necessity as it would not have been appropriate to charge the applicant with separate offences in relation to each of the very many items incorporated by the charges.

49. The two federal charges were charged pursuant to s 474.22(1) and s 474.22A(1) of the Criminal Code respectively. As particularised, the first was a charge that the applicant accessed child abuse material using a carriage service while the second was a charge that the applicant possessed or controlled child abuse material in the form of data and used a carriage service to obtain or access the material. Sequence 1 involved a range of dates, between 13 December 2021 and 8 June 2022. This was to cover the combination of the receipt by the applicant of child abuse material from “Popo Catepetl” and from the child with whom he had communicated on the Samsung Galaxy S21, together with the other items found on that phone and on the Galaxy S5, all of which were in the applicant’s possession at the time of the execution of the search warrant on 8 June 2022 and had been accessed between March and June 2022.

50. Sequence 2 was limited to the later date, but also covered images on the Galaxy S21 and the Galaxy S5 together with further images stored on the computer hard drive.

51. The demarcation between the material relied on in support of the two federal offences was on the basis of metadata showing access to the files in sequence 1. Given the mental element of possession, and the use of a carriage service to “obtain or access” the material the subject of the second charge, the existence of evidence establishing particular dates of access did not materially affect the criminality involved as between the two charges. That is, while the offences have different elements, it is not at all clear how, in the circumstances of this case, those different elements reflected how punishment for the offending should be meted out. The maximum penalty was the same. There was no suggestion that that maximum penalty available with respect to a single charge would not have been adequate to cover the criminality with respect to all of the material covered by the two sequences. If there was a distinction to be made it was not brought to the attention of the sentencing judge or this Court. It unnecessarily added to the complexity of the sentencing exercise.

52. The State charge, an offence against s 91H(2) of the Crimes Act 1900, namely possession of child abuse material, was similarly a “rolled up charge” based on the items that had been printed or stored on DVDs. The applicant admitted that he had downloaded this material from the internet, such that the element requiring the use of a “carriage service” was likely to be established had they been included in a federal offence. Alternatively, there was no reason the material the subject of the federal offences could not have been incorporated in the State offence. In the context of the applicant’s plea of guilty this could have included details of the receipt of the material in the conversations the subject of sequence 1. (Had there been a trial it is likely that it would have been necessary to pursue multiple charges to avoid a complaint of duplicity.) The maximum penalty for the State offence was 10 years. Again, there was no suggestion that this penalty was insufficient to comprehend the criminality of the offending.

53. Moving away from the charges and analysing the facts, the applicant was to be dealt with for the following items on the following devices:

• Samsung S5: 25 files (23 images, 2 videos; 21 images accessed between December 2021 and June 2022);

• Samsung S21: 15 files (11 images, 4 videos; 2 of the images were received in the chats; 8 images were accessed between December 2021 and June 2022);

• Computer hard drive: 27 images;

• Printed material: 38 images (downloaded and printed);

• 4 DVDs: 3 videos, 1,279 images.

55. Across the various devices it can be seen that the applicant was to be sentenced with respect to a significant volume of child abuse material. The vast majority of the material involved real children. There was material involving penetration and other sexual acts with adult males. These were primarily on the Samsung S5, with one (animated) video on the S21. One of the videos showed a naked child talking to an adult male while he masturbated (on a DVD, the subject of count 5). The majority of the children appear to have been between the ages of 6 and 16, although one of the DVDs included an image of a girl as young as 3.

56. The applicant did not challenge the sentencing judge’s assessment of the objective gravity of the offending (noting the limitations in doing so: Mulato v R [2006] NSWCCA 282). Her Honour assessed sequences 1 and 2 as in the mid-range and sequence 5 as in the mid to high range of objective seriousness. Given the difference in the quality of the material across the devices, the increased seriousness of sequence 5 reflects the sheer volume of material covered by that charge, noting that it is not clear how many different children were exploited in producing the images. (See generally R v Hutchinson [2018] NSWCCA 152 in relation to the relevant considerations in assessing offences involving child exploitation material.)

57. There is some force in the applicant’s submission, made in the context of ground 1 but relied on in support of ground 2, that, had he been sentenced for the federal offences only, he was unlikely to serve more than two years in custody before being released pursuant to a recognizance release order. Given this, and the relationship between the offences there is, equally, force in the submission that the commencement of the State aggregate sentence two years into the federal sentence allowed for less concurrency than might ordinarily have been expected. As noted in the context of ground 1, whether the result was manifestly excessive of course depends in part on the length of the sentence for the State offences. That sentence incorporated the further offences which did not involve child abuse material. It is necessary to consider those offences and the impact they could properly have on the sentencing exercise.

The charges unrelated to child abuse material

58. The aggregate sentence imposed for the State offences incorporated the offences of possession of bestiality material and the firearms and weapons offences.

59. With respect to the possession of bestiality material, there were two images. Presumably based on that low number of images, the offence was classified as being in the low range. Having regard to the maximum penalty of three years, the objective gravity of the offending, and the applicant’s lack of prior relevant criminal history, there is force in the submission that, but for the other offending, a sentence of imprisonment would not have been imposed in relation to this offence.

60. The above is not to suggest that the sentence imposed for an offence had it stood alone should be the same as that which would be appropriate in the context of multiple offences. That is because, apart from anything else, in the context of multiple offences the individual offence lacks the quality of an isolated aberration, a matter which is likely to impact the weight to be given to specific deterrence. Conversely, the presence of other offences will affect the assessment of an offender’s prospects of rehabilitation and the weight to be given to that factor. I do not intend to be exhaustive in this analysis. Other sentencing considerations may also be affected. Nonetheless, her Honour’s starting point of 12 months prior to the discount for the applicant’s plea of guilty when viewed against the maximum penalty of three years, together with the lower objective seriousness and the applicant’s subjective case including his lack of prior record, is, with respect, difficult to justify.

61. The firearms and weapons offences were all before the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act. The applicant’s possession of those items was irresponsible and criminal. It was, however, not suggested that he had come by the items by any nefarious means or kept them for any nefarious purpose. The applicant held a firearms licence and had a registered firearm properly stored in a safe. The firearms the subject of the charge, however, were not properly stored or registered. They had belonged to the applicant’s father and the applicant had kept them. They were not in working order and presented no immediate danger. The knuckleduster had been found by the applicant. He told police he had forgotten about it. There was no suggestion it was an item the applicant had used or was likely to use. There was, however, a risk of it coming into the possession of someone who might use it. There was no information with respect to the possession of the silencer, in part because the applicant was not asked about it when interviewed by the police. It was not given any significance in the sentencing proceedings.

62. The firearms and weapons charges are of a wholly different nature to the other charges. The existence of those other charges, as a result, has little bearing on the appropriate penalty for these offences. Had the applicant been sentenced for these offences alone they would have been dealt with in the Local Court, and a sentence of full-time imprisonment would not be expected. Having regard to the scheme in Chapter 3, Part 3, Division 7 of the Criminal Procedure Act by which these offences were dealt with in the District Court rather than summarily, the applicant should not have been worse off as a result of that process.

63. It is to be recalled that her Honour recorded the indicative sentence for the possession of child abuse material as being 2 years and 3 months. The total term imposed was 2 years and 9 months. It can thus be seen that an additional six months resulted from the offences relating to the bestiality material, the firearms and the weapons.

64. Having regard to what I have said above with respect to the offences not involving child abuse material, the extension of the sentence by six months is difficult to justify and significantly added to the severity of the overall sentence.

Conclusion as to manifest excess

65. The indicative sentence for sequence 5 was 2 years and 3 months, which represented a starting point of 3 years imprisonment, prior to the application of a 25 percent discount for the plea of guilty. This was within the available range, particularly having regard to the volume of material in the applicant’s possession. However, when regard is had to the additional six months that was added to take into account the State offences, which produced the aggregate sentence of 3 years, and the commencement date of the State offences 2 years into the 3 year federal aggregate sentence, the result is, in my view, simply too long.

66. The impression I have formed is supported by reference to the results of the cases put forward by the Crown and the applicant at first instance as offering some assistance as comparators. [1]

    1. The Crown referred to R v Cardwell [2021] QCA 112, Musca v R [2021] WASCA 37, Mertell v R [2022] ACTCA 69, Chesworth v R [2023] NSWCCA 115; the applicant referred to R v Henderson [2023] ACTSC 110; R v Cox [2021] ACTSC 98; R v AX (No 3) [2020] ACTSC 334; R v Cusack [2021] ACTSC 75; R v Delzotto [2022] NSWCCA 117.

67. I am of the view that the aggregate sentence imposed for the State offences is, as the applicant contends, manifestly excessive.

Evidence on resentence

68. As a result of my conclusion above, it is necessary to re-exercise the sentencing discretion having regard to the further evidence admitted for this purpose.

69. On resentence the applicant relied on an affidavit of his solicitor, his mother and himself. The affidavit of the applicant’s solicitor annexed a number of progress notes obtained from Corrective Services. While the applicant, unsurprisingly, experienced anxiety on his admission, the progress notes suggest this settled after a relatively short time. He had engaged in employment and, significantly, appeared motivated to engage in rehabilitation.

70. A further report from Mr Knight, dated 29 January 2025 was annexed to the affidavit. Mr Knight reported that the applicant had engaged in a further session with him while in the community after the preparation of the initial report, and further, on entering custody, requested arrangements be made for counselling to continue at the earliest opportunity. Due to circumstances unconnected with the applicant, this was not able to commence until 13 September 2023, after which a total of nine sessions were conducted between that date and the date of the report. Mr Knight indicated that the applicant had “continued to fully engage in the treatment process and appears to take every session seriously”, including completing all set homework tasks. Mr Knight acknowledged that the applicant had prioritised engagement with his treatment despite his incarceration and lack of regular income. While there was a period where the applicant reduced his sessions to monthly due to the cost, he had reinstated them to fortnightly sessions in order to complete the course of treatment proposed by Mr Knight. As a result it was anticipated he would complete his relapse prevention plan modules by mid-April 2025, and all the remaining planned modules by early June 2025.

71. In his own affidavit the applicant deposed that he spent approximately three weeks as a maximum security inmate during which time he was concerned for his safety. He was then reclassified as a minimum security prisoner (C2) and transferred to Cessnock Correctional Centre. Even at Cessnock, however, he had witnessed a number of incidents of a frightening nature.

72. The applicant confirmed that he was working whilst at Cessnock, receiving visits weekly from his mother and engaging in education. He had experienced some health difficulties, ultimately passing kidney stones without analgesia. He had also reported a childhood experience of abuse, however Victoria Police informed him that the perpetrator was now deceased.

73. The applicant’s mother, now 86, deposed that she had recently had a serious fall and lost confidence in her mobility. A medical report annexed by her set out her conditions and assessed her to be at an ongoing high risk of falling. She expressed her anxiety as to how much longer she could survive without the applicant’s support. The hardship to the applicant’s mother is relevant in relation to the federal offences: Crimes Act 1914, s 16A(2)(p); Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75. The anxiety the applicant no doubt experiences resulting from his concern for his mother, and its consequent impact on the onerousness of his imprisonment is relevant to all charges.

Resentence

74. With respect to the State matters, I intend to proceed by way of an aggregate sentence incorporating each of the State offences. Were I not imposing an aggregate sentence I would have imposed the sentences set out below.

75. With respect to sequence 5, the possession of child abuse material contrary to s 91H of the Crimes Act 1900, like the sentencing judge I would commence with a sentence of 3 years, which, discounted by 25 percent results in a sentence of 2 years and 3 months.

76. With respect to sequence 15, possess bestiality material, I would impose a conviction with no other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

77. With respect to sequence 9, possess unauthorised firearms contrary to s 7A(1) of the Firearms Act, taking into account the offence on the Form 1, I would impose a sentence of 3 months, based on the starting point of 4 months with a reduction of 25 percent for the plea of guilty.

78. With respect to sequence 12, possess a prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act, I would impose a conviction with no other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

79. I would impose an aggregate sentence of 2 years and 3 months. In doing so, I acknowledge that the penalty for the offending in sequences 9, 12 and 15 will be subsumed in the indicative sentence for sequence 5. In my view, this is appropriate in circumstances where the applicant would not have received a custodial sentence for these offences but for the more serious offences.

80. I would commence the State sentence so as to allow for a greater degree of concurrency with the federal sentence. Given the complaint of manifest excess related solely to the State aggregate sentence, it is not appropriate to interfere with the length of the federal aggregate sentence. Having regard to the common features between the charges, I would commence the State sentence one year into the federal sentence. This will result in a total sentence of 3 years and 3 months. An appropriate mandatory pre-release period is 2 years. With respect to the State sentence, I would find special circumstances for the purposes of s 44 of the Crimes (Sentencing Procedure) Act to take into account the effect of cumulation and to provide a longer period under supervision to promote the continuation of the applicant’s rehabilitation. Given that I propose a greater degree of concurrency between the sentences than had been allowed at first instance, is necessary to make a recognizance release order pursuant to s 19AC(1) for the release of the applicant after serving two years of the federal sentence.

Orders

81. I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentences imposed by Payne DCJ on 15 August 2023.

4. The applicant is sentenced as follows:

In relation to sequences 1 and 2:

1. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) the applicant is sentenced to an aggregate term of imprisonment of 3 years commencing on 14 August 2023 and expiring on 13 August 2026.

2. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Court makes a recognizance release order directing the release of the applicant after he has served 2 years of the sentence (that is, on 13 August 2025) upon the applicant giving surety in the sum of $100 without security, on condition that he be of good behaviour for a period of 1 year until 13 August 2026, and comply with the following further conditions:

1. The applicant be subject to the supervision of a probation officer appointed in accordance with the order;

2. The applicant obey all reasonable directions of the probation officer;

3. The applicant not travel interstate or overseas without the written permission of the probation officer;

4. The applicant undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

In relation to sequences 5, 9, 12 and 15

3. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) the applicant is sentenced to a term of imprisonment of 2 years and 3 months commencing on 14 August 2024 comprising of a non-parole period of 1 year and a balance of term of 1 year and 3 months. The non-parole period is to expire on 13 August 2025 and the balance of term is to expire on 13 November 2026. The earliest date on which the applicant will be eligible for parole is 13 August 2025.

82. YEHIA J: I agree with the orders proposed by Dhanji J and with his Honour’s reasons.

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Endnote

Decision last updated: 21 March 2025